Nothing in the 'rulebook' regarding former DA's contention that he can offer implied immunity, says one lawyer

The hearing Tuesday meant to determine if the criminal case against Bill Cosby is allowed to go forward is unprecedented on several levels, according to defense lawyers contacted by PhillyVoice.

The case continues Wednesday, but it is not clear if a ruling on the issue will come from the bench, or if Common Pleas Court Judge Steven T. O’Neill will issue a written opinion later.

Alan Tauber, a criminal defense lawyer in Philadelphia, said the pre-trial hearing was conspicuous for the lack of a written immunity agreement for Cosby and a situation where a former district attorney was on the stand being questioned by the current district attorney's office.

Moreover, Castor was once the boss of the current district attorney, Kevin Steele, Tauber noted.

“While it is not unusual for criminal defense attorneys and prosecutors to enter into oral agreements – most commonly plea agreements – it is extraordinarily exceptional for them to engage in oral immunity agreements…the agreement would typically be stated orally into the record," Tauber said.

“While entirely possible, it is hard to imagine that an experienced defense attorney would allow his client to forgo his Fifth Amendment rights – possibly an accused's most important constitutional right – without a written agreement, especially where that client is a celebrity who could garner national attention and be a notable target for an ambitious prosecutor," he added

“What makes this case even more intriguing is the fact that the defense’s principal witness is the prosecutor who allegedly struck that immunity agreement. That same prosecutor is the former boss of the prosecutor who is bringing the current charges as well as his political adversary,” concluded Tauber.

The hearing stems from a criminal case against Cosby, 78, based on allegations by former Temple University employee Andrea Constand that Cosby had drugged and sexually assaulted her in his Cheltenham, Montgomery County home.

Castor testified all day Tuesday about the case and why it should not proceed, though he is no longer a district attorney. Steele, who beat Castor last in November's election and became the county's district attorney, brought the criminal charges against Cosby just days before a 12-year statute of limitations was about to expire. Castor was district attorney when the Constant charges first came to light.

Constand reported the case about a year after the alleged assault; Cosby settled a civil suit with her just after Castor announced he was not prosecuting the comedy legend.

At issue in the pre-trial hearing is if Castor appropriately decided that Cosby could never be prosecuted criminally on Constand's allegations. Castor decided he would not bring charges, but Cosby would give up his Fifth Amendments rights against self-incrimination in Constand's civil case.

Cosby gave a deposition in that civil case, which has become part of the foundation for Steele re-opening the case and charging Cosby criminally. While more than 50 women have made similar allegations, Constand's is for now the only criminal case facing Cosby.

A HIGH HURDLE

Defense lawyer Daniel McGarrigle called Cosby’s defense team's argument, “a very creative and perhaps brilliant argument,” but added there is not much precedent to support the position.

“They are using basic elements of contract law (offer, acceptance, reliance) and combining them with the inalienable constitutional rights that each and every criminal defendant enjoys to argue that the prior agreement between Mr. Castor and Mr. Cosby bars the prosecution in this case,” said the lawyer, who has offices in Philadelphia and Media.

But they have a high hurdle, McGarrigle added.

“Can the defense convince a 'by the book' judge like Judge O'Neill to dismiss the charges based upon this argument when there is not really a page in the 'rulebook' that they can readily point to?” he said.

JC Lore, a former defense lawyer who is now a law professor at the Rutgers Law School, said Castor was faced with many issues when deciding how to proceed, but a lack of written documentation for immunity is "a pretty weak agreement."

Lore said the decision not to prosecute Cosby seems to be based on largely on Castor's assessment of Constand's credibility and underscores the difficulties of pursuing a criminal case against a well-known celebrity.

“On the one side, Castor had concerns about the credibility of what would be his main witness (Constand) against Bill Cosby," Lore said. “He was concerned that the defense would be able to impeach the credibility of his witness because she took a year to report the case to authorities; had made several statements which always brings up the possibilities of contradictions; his ability to evaluate her as a witness; and potential motives that could be exposed with a pending civil case and the tape recording of conversations.

But it is common for victims of sexual violence to delay reporting a crime because of fear, shame, and embarrassment, he said. Specifically, victims may believe their claims will not be deemed credible, a magnified concern when the alleged perpetrator is a celebrity.

“If the victim was telling the truth, it sounds like some of those concerns might have been realized when Castor refused to prosecute Cosby based partially on credibility,” said Lore.